November 21, 2006

Neil Clark

Last March I posted a comment about the blogger Neil Clark. Mr Clark writes a monthly column for the Communist Morning Star and contributes periodically to other publications. A distinctive theme is his defence of the reputation of the late Slobodan Milosevic, who, in Mr Clark’s view, “had little option but to use military means to try to prevent the break-up of his country”, and whose death - again in Mr Clark's view - was a case of murder.

Earlier this year Mr Clark objected to comments I had made about him on this blog. He sent me several emails threatening legal action if I did not remove those comments and publicly apologise. After considering his complaints carefully, I declined to do as Mr Clark requested. In my opinion, the remarks in question were fair comment on a matter of public interest. I told Mr Clark that if he initiated legal proceedings then I would defend myself to assert the right to fair comment within appropriate bounds. In these responses to Mr Clark I took advice from a specialist in defamation law at the Toronto firm of Fasken Martineau DuMoulin LLP, whom I had had cause to consult on another matter.

This is where my post in March left the issue, and I have not mentioned it since. I am now putting on record what happened next. So that this post can be a self-contained account of the case, I first restate the issues in the dispute.

The first issue had arisen from a review that Mr Clark published in The Daily Telegraph of a book by me on issues of public interest. On this blog, I stated accurately certain characteristics of the review and questioned whether Mr Clark had even read the book. Having taken legal advice, I concluded that this statement was clearly within the scope of fair comment at common law, and also arguably privileged on the basis that it was a reply to public criticism. In any event, when Mr Clark took issue with my comment and said he had indeed read the book, I promptly stated on this site that I believed him.

The second issue had arisen from a statement by me that, on his website and in communicating with the Books Editor of The Daily Telegraph, Mr Clark had claimed that assertions made in his review were supported by a report of the “Institute of Strategic Studies Organisation”. I pointed out that a reasonable person might readily take this as a reference to the well known International Institute for Strategic Studies. I had positively identified Mr Clark’s source, however, as a less well known and far more controversial body called, confusingly, the International Strategic Studies Association. My statement was true, and Mr Clark did not deny it even though I specifically invited him to do this if appropriate. I stated on this website that I did not believe Mr Clark had intentionally sought to mislead. His description of his source material was, however, certainly inaccurate, and properly a subject for public comment. It was obvious to me, having taken legal advice, that I had acted entirely properly as a commentator on matters of public interest.

Mr Clark posed several deadlines that passed. In April, however, I received notification from his local County Court of a claim against me by Mr Clark. (The County Court deals with most minor civil law matters.) The claim sought damages, removal of allegedly defamatory material and an apology. It did not state what the alleged defamatory comments were. At this point, Fasken Martineau, being unable to represent me in an English court, referred my case to the London law firm of Charles Russell LLP.

Charles Russell wrote to Mr Clark on 24 April. The letter informed Mr Clark that his purported claim had clearly been invalidly issued. A claim for damages or other remedy for libel may not be started in the County Court unless both parties have agreed in writing. I had not given my agreement, and did not agree. Mr Clark’s action was thus an abuse of process. The letter added that my rights against Mr Clark were reserved, in particular with regard to costs wasted as a result of his behaviour. A copy of the letter was sent to the County Court.

Immediately on receiving this letter, Mr Clark wrote to me. He said that if his claim was not to be heard at the County Court, he would take action against me in the High Court. He requested, however, that I tell my solicitor I had reconsidered and no longer objected to the case being heard at the County Court, which Mr Clark considered the most convenient forum.

Charles Russell replied to Mr Clark on 27 April, strongly rejecting the contention that the County Court was the most convenient forum for his complaint. The letter explained the reason for the rule we had brought to Mr Clark’s attention. The experience of the High Court in libel cases meant the interests of justice were most likely to be served by proceeding there.

Mr Clark’s claim was struck out by the County Court on 3 May, with the forfeiture of his court fee. No action was subsequently initiated by Mr Clark in the High Court.

As the issue did not arise, I cannot say for certain what form my defence would have taken in a High Court hearing. It is likely that my counsel would have issued an immediate counterclaim against Mr Clark for defamation, owing to comments made in a very long series of posts about me on his blog. (I consider it wrong in principle and self-defeating for a writer to threaten legal action against a blogger, and cannot imagine realistic circumstances in which I would do so. But were I in the High Court anyway as a defendant, all bets would be off.)

Mr Clark’s claim was, in short, an abuse of the legal process, and a waste of my time, my lawyers’ time, and court time. I thought very hard about whether, in the circumstances, to pursue Mr Clark for my legal costs. Eventually, against advice from professional colleagues, I decided not to do so. Partly this was a pragmatic decision. I do not know whether Mr Clark would have been able to pay, and it would have cost me more time and money to pursue a claim for legal costs. But I also wanted Mr Clark to understand that my concern in this matter has been not to cause him hardship but to assert a principle. Mr Clark had complained that my critical remarks were an attempt to ‘silence’ him. This was the opposite of the truth. My posts were fair comment about a writer’s statements on matters of public interest.

Blogger disputes are usually trivial affairs, conducted at high volume but with low stakes and few readers. The issues in this dispute were important. According to an article on the Guardian web site, this was believed to be the first case in the UK of a libel action against a blogger. I defended the case, and have voluntarily borne costs that are not trivial, because an action that would have had the effect of restricting free comment would otherwise have succeeded by default. Blogging would be a less free medium than it is, and than I hope it will continue to be, if I had acceded to Mr Clark’s demands.

I am indebted to my legal advisers at Fasken Martineau DuMoulin LLP and Charles Russell LLP, whose service to me in this case has extended to reviewing this post before publication.